Test of Proportionality and Final Verdict
In determining whether the limitation imposed by Section 10
(2) is arbitrary or excessive, three questions need to be answered:
1. Whether the legislative objective is sufficiently
important to justify limiting a fundamental right?
2. Whether the measures designed to meet the legislative
objective are rationally connected to it?
3. Whether the means used to impair the right or freedom are
no more than is necessary to accomplish the objective?
It was said that the first two of these criteria could be
met in the case of civil servants once it is noticed that their special status,
with its advantages and restraints, is recognised as proper in the
administration of a free society.
But the third criterion raises a question of proportionality.
The blanket approach taken in section 10 imposes the same restraints upon the
most junior of the civil servants as are imposed upon the most senior.
There are classes of civil servants related to the seniority
of the posts which they fill and a distinction is made between the classes as
to the extent of any restraints imposed upon them in regard to their freedom of
political expression.
Their Lordships ended their discourse by directing that “in
the Civil Service Act of Antigua and Barbuda a considerable analysis of the
grades of civil servants is set out in the First Schedule and it would plainly
be practical to devise a comparable system of classification as has been
adopted in the United Kingdom. Without some such refinement their Lordships are
not persuaded that the validity of the provision can be affirmed. The
distinction between the different grades of civil servant and the application
of the provision in particular circumstances to particular individuals cannot
in their Lordships' view sufficiently be made by the implied condition proposed
by the Court of Appeal for the reasons which have already been set out.”
Hence, the appeal was allowed and the judgment passed by the
first court was restored.
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